Iowa District Court Judge Rustin Davenport recently issued an order vacating the Iowa Department of Natural Resources (“IDNR”) restitution assessment against Monroe Branstad, a  Forest City, Iowa farmer. The case began in 2010 when the IDNR issued a restitution assessment against Monroe Branstad in the amount of $61,794.49 for a fish kill that took place on the Winnebago River in 2008.  Mr. Branstad challenged the restitution assessment arguing that the IDNR officer had not followed the counting method specified in the American Fisheries Society (AFS) Special Publication No. 24, which had in turn been incorporated into the IDNR’s rules by the Iowa legislature. In the initial hearing, the Administrative Law Judge sided with the IDNR and agreed that AFS 24 was merely a guideline and that the IDNR did not have to follow the scientific counting methodology set out in the publication. This finding was affirmed on appeal to the Natural Resources Commission. The case was then appealed to the Iowa District Court for Hancock County on a Petition for Judicial Review. Judge Rusty Davenport issued an order vacating the fish kill restitution assessment by the IDNR.

The DNR argues that AFS 24 is merely a guideline but the court disagrees. The enabling statute specifically calls for rules for investigating fish kills.” Guidelines are appropriate when it is not practical to count in sample areas. There was no question that here it was practical to count in sample areas along the Winnebago because that is what the DNR did. The standard for counting dead fish is not professional judgment. If it was, there would be no need for AFS 24 or separate provisions in the Iowa Administrative Code for fish kill investigations and investigations regarding other species.

 p. 15 (citations omitted, emphasis in original).

The court also held that:

Although language in AFS 24 discusses the rules as guidelines, once the DNR adopted the AFS 24 as rules of the State of Iowa, they were no longer guidelines. To allow the DNR to choose a methodology contrary to the AFS 24 violates the requirement that rules should provide fair notice to the public, and that the rules will be consistently applied. The actual method used by the DNR in this case was not a method that was subject to review prior to the adoption of the DNR regulations.

p. 22

Following a motion to reconsider, the court did allow the DNR to count the actual number of dead fish. Neither side filed an appeal of either order and all time limits for appeals have expired. James Pray served as counsel for Monroe Branstad in this matter. It is unknown at this time if the DNR has agreed to actually start following the fish kill counting methodology in the AFS publication.

— James Pray, attorney at law, BrownWinick Law Firm

Decision is available here. Ruling on Petition for Judicial Review (00533137)